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2014 (11) TMI 390 - AT - Central ExciseCENVAT Credit - whether appellant can take suo moto credit of the Cenvat Credit once reversed and also whether Cenvat Credit with respect to services of Initial Public Offer (IPO) is admissible to the appellant - Held that - order passed by the Hon ble High Court of Madras in the case of M/s. ICMC Corporation Ltd., Chennai Vs. CCE, Chennai 2014 (1) TMI 1473 - MADRAS HIGH COURT that in the case of wrongly debited Cenvat Credit suo moto credit can be taken and there is no need to file the refund claim under Section 11B of the Central Excise Act, 1944. A similar view was earlier taken by the Jurisdictional High Court of Gujarat in the case of M/s. Shyam Textile Mills & Anr. Vs. UOI 2004 (6) TMI 590 - GUJARAT HIGH COURT . On merits also a stay on the same issue was given by the Bangalore Cestat in the case of M/s. Kernex Micro Systems (I) Ltd. Vs. CCE, Hyderabad (2012 (9) TMI 376 - CESTAT, BANGALORE). Prima facie, appellant has made out a good case for waiver of the confirmed demand and penalties - Stay granted.
Issues:
- Stay application filed by the appellant challenging the operation of OIA No.VAD-EXCUS-001-APP-500-13-14. - Whether appellant can take suo moto credit of the Cenvat Credit once reversed. - Whether Cenvat Credit with respect to services of Initial Public Offer (IPO) is admissible to the appellant. Analysis: 1. The appellant filed a stay application to challenge the operation of OIA No.VAD-EXCUS-001-APP-500-13-14. The main issue revolved around the appellant's ability to take suo moto credit of the Cenvat Credit once reversed and the admissibility of Cenvat Credit related to services of Initial Public Offer (IPO). 2. The appellant's advocate argued that services related to IPO fall under the definition of Rule 2(l) of the Cenvat Credit Rules, 2004, emphasizing the case law precedent set by the Bangalore Bench in M/s. Kernex Microsystems (I) Ltd. Vs. CCE, Hyderabad. Additionally, the advocate cited the judgment in the case of M/s. Nocil Vs. CCE, Belapur to support the contention that reversed Cenvat Credit can be re-credited without following the provisions of Section 11B of the Central Excise Act, 1944. Several other case laws were also referenced to strengthen the appellant's position. 3. The revenue representative contended that the appellant could not take suo moto credit and must adhere to the procedures outlined in Section 11B of the Central Excise Act, 1944. The revenue supported the lower authorities' decision. 4. After considering the arguments from both sides and reviewing the case records, the judge referred to the judgments in the cases of M/s. ICMC Corporation Ltd., Chennai Vs. CCE, Chennai and M/s. Shyam Textile Mills & Anr. Vs. UOI, which supported the appellant's ability to take suo moto credit in cases of wrongly debited Cenvat Credit without the need for a refund claim under Section 11B. The judge also noted the stay granted by the Bangalore Cestat in a similar issue. The judge found merit in the appellant's case for waiving the confirmed demand and penalties, providing a stay on recovery until the appeal's disposal. 5. Consequently, the judge pronounced a stay on the recovery of confirmed demands and penalties until the appeal's final resolution on 18.07.2014.
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